HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 111 - DEFENDANTS MILLER AND JOSEY'S RESPONSE TO MOTION TO VACATE ORDER GRANTING MOTION TO DMISSLarimer County, Colorado, District Court
Larimer County Justice Center
201 La Porte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
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Plaintiff:
ERIC SUTHERLAND,
v.
Defendant:
THE CITY OF FORT COLLINS, a home rule municipality in
the State of Colorado; STEVE MILLER, in his capacity as the
Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and Indispensable
Parties: THE TIMNATH DEVELOPMENT AUTHORITY, an
Urban Renewal Authority; and COMPASS MORTGAGE
CORPORATION, an Alabama company doing business in
Colorado.
Jeannine S. Haag, Reg. No. 11995
George H. Hass, Reg. No. 897
David P. Ayraud, Reg. No 28530
Frank N. Haug, Reg. No. 41427
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
jeanninehaag@larimer.org
ghass@larimer.org
dayraud@larimer.org
haugfn@larimer.org
Case No. 18 CV 149
Courtroom 5B
DEFENDANTS MILLER AND JOSEY’S RESPONSE TO MOTION PURSUANT TO
C.R.C.P. RULE 60(b) TO VACATE ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS
DATE FILED: March 27, 2019 2:20 PM
FILING ID: 1744B659B5221
CASE NUMBER: 2018CV149
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Defendants Miller and Josey (collectively, “County Defendants”) hereby respond to
Plaintiff’s Motion to Vacate Order Granting the Motion to Dismiss (“Motion to Vacate”).
INTRODUCTION
Plaintiff seeks relief pursuant C.R.C.P. 60(b). This rule allows a court to set aside a
judgment in certain circumstances. Here, Plaintiff seeks to set aside the Court’s Order, dated
September 5, 2018, dismissing the claims against County Defendants. In its Order, the Court
found that the claims listed in Plaintiff’s Unamended Complaint should be dismissed because (1)
the Plaintiff lacked standing, (2) the plaintiff had not sufficiently pled his claims, and (3) the
claims were moot or inapplicable to the Defendants.
The claims which appear to involve County Defendants are the Second, Third, and
perhaps the Seventh, which were specifically dismissed by the Court. However, Plaintiff appears
to only be requesting that the First and Twelfth claims be reinstated. To that extent, and because
those claims are irrelevant to Defendant’s Josey and Miller, the Motion to Vacate should be
denied as to the County Defendants. Further, because the Plaintiff has failed to allege grounds
under Rule 60(b) warranting reconsideration of the judgment, and because the Court was correct
in its initial ruling of dismissal, County Defendants request the Motion to Vacate be denied.
LEGAL STANDARDS
The granting or denial of a C.R.C.P. 60(b) motion lies within the sound discretion of the
trial court and, absent abuse of that discretion, will not be disturbed on appeal. E.B. Jones
Construction Co. v. City and County of Denver, 717 P.2d 1009, 1013-1014 (Colo.App. 1986).
The basis for relief under Rule 60 is summarized by the Colorado Court of Appeals as follows in
the E.B. Jones case:
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The thrust of C.R.C.P. 60, as we perceive the rule, is to allow a court that has
rendered judgment the opportunity to change it when significant new matter of
fact or law arises which is extrinsic to it because of not having been presented to
the court. Invocation of the rule demands scrupulous consideration of strong
policies favoring finality of judgments. Thus, Rule 60 is not a substitute for
appeal, but instead is meant to provide relief in the interest of justice in
extraordinary circumstances. The moving party must clearly establish the
existence of one of the grounds of relief afforded by the Rule. (internal citations
omitted).
The grounds for relief under the rule are:
(1) Clerical error,
(2) Mistake, inadvertence, surprise, or excusable neglect,
(3) Fraud,
(4) Satisfaction of the judgment,
(5) Any other reason justifying relief from the operation of the judgment.
To set aside a judgment under C.R.C.P. 60(b), the movant bears the burden of
establishing by clear and convincing evidence that the motion should be granted. Borer v.
Lewis, 91 P.3d 375, 380–381 (Colo.2004). When considering whether to grant a motion based
on excusable neglect the Court should consider (1) whether the neglect that resulted in entry of
judgment by default was excusable; (2) whether the moving party has alleged a meritorious
claim or defense; and (3) whether relief from the challenged order would be consistent with
considerations of equity. Craig v. Rider, 651 P.2d 397, 402 (Colo. 1982).
On a motion for relief from judgment due to excusable neglect, in determining whether
the movant has alleged a meritorious claim, the court examines the factual allegations contained
in the pleadings, not their legal conclusions. Sebastian v. Douglas County, 366 P.3d 601 (Colo.
2016). In general, excusable neglect involves unforeseen circumstances which would cause a
reasonably prudent person to overlook a required act in the performance of some responsibility;
failure to act because of carelessness and negligence is not excusable neglect for purposes of a
motion to set aside a judgment or vacate a judgment on the basis of excusable neglect. People v.
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Weisbard, 35 P.3d 498 (PDJ, 2000). See also Colorado Dept. of Public Health and Environment
v. Caulk, 969 P.2d 804 (Colo.App. 1998).
The residuary clause, subsection (5) of Rule 60(b), is not a substitute for appeal. SR
Condominiums, LLC v. K.C. Const., Inc., 176 P.3d 866 (Colo.App. 2007). Errors that courts will
consider under the residuary clause of the rule of civil procedure governing motions for relief
from judgment must be very rare and very serious, because the consideration of less serious
errors would undermine the important interest in the finality of judgments. Harriman v.
Cabela’s Inc., 371 P.3d 758 (Colo.App. 2016).
As noted in the Court’s September 5, 2018 Order, a plaintiff has standing if he or she “(1)
incurred an injury-in-fact (2) to a legally protected interest, as contemplated by statutory or
constitutional provisions.” Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886, 890 (Colo.
2001). To determine standing, a court considers “whether the plaintiff has asserted a legal basis
upon which a claim for relief may be predicated.” Olson v. City of Golden, 53 P.3d 747, 750
(Colo. App. 2002). As further noted by the Court, Rule 8(a) of the Colorado Rules of Civil
Procedure requires a “short and plain statement of the claim showing that the pleader is entitled
to relief.” The allegations contained in a complaint must be more than merely speculative and
must provide plausible grounds for relief. Warne v. Hall, 373 P.3d 588, 595 (Colo. 2016).
ARGUMENT
Plaintiff argues that he is entitled to relief under Rule 60(b) for two primary reasons: (1)
that subsequent to the Court’s Order to dismiss, Plaintiff developed an alternative legal
interpretation of standing, and (2) that the Court was simply incorrect with regard to its ruling.
In order to obtain relief under Rule 60(b), Plaintiff must demonstrate that his relief is
allowable under one of the grounds in the rule. Here, the Plaintiff appears to hang his argument
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on the element of excusable neglect. However, nowhere in his pleadings does Plaintiff describe
what neglect resulted in an invalid ruling, or the reasons why the neglect was excusable. Rather,
Plaintiff simply states that he “became aware of the broad grant of standing…on October 22,
2018.” This does not amount to neglect, and there is no basis to believe it was excusable.
Instead, it is simply the Plaintiff’s realization that, upon additional legal research, he would have
liked to have made an alternative legal argument at some earlier point in the case. His failure to
act on this argument does not amount to excusable neglect. See Weisbard. At best, Plaintiff
argues that he may have an additional legal theory that he could have presented. However, this
is not the excusable neglect contemplated by the first prong of the Craig case. The Plaintiff has
failed to “clearly establish the existence of one of the grounds of relief afforded by the Rule.”
See E.B. Jones.
Plaintiff believes he is entitled to relief because the Court erroneously ruled that he
lacked standing. However, allegations that a court has erroneously applied the law do not bring a
party within subsection (5) of C.R.C.P. 60(b). Here, Plaintiff is not allowed circumvent filing an
appeal by seeking Rule 60(b) relief and is not entitled to relief under the narrowly construed
residuary clause of the rule. See Harriman.
In addition to his failure to demonstrate excusable neglect, Plaintiff’s substantive
argument regarding standing is without merit. Plaintiff spends the bulk of his Motion to Vacate
arguing that the Court incorrectly interpreted standing under the Open Meetings Law, C.R.S. 24-
6-402(9). However, it is clear from the Court’s Order on July 11, 2018, and the Court’s Order on
September 5, 2018, both of which Defendants incorporate herein, that the Court carefully
considered standing, and ruled that Plaintiff did not possess it. Unlike many other default
judgments which give rise to Rule 60 motions, here there is a legal determination as to the merits
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of the complaint by the Court. The appropriate mechanism to seek relief therefore would be to
file an appeal.
Standing is conveyed by neither the remote possibility of a future injury nor an injury that
is overly “indirect and incidental” to the defendant's action. Brotman v. E. Lake Creek Ranch,
L.L.P., 31 P.3d 886, 890–91 (Colo.2001). Here, Plaintiff argues that there may be some
unfavorable tax implications at some unknown point in the future. Further, County Defendants
have no discretion with regard to the validity of the taxes involved, but rather simply perform the
ministerial duties assigned to their offices. The injury Plaintiff claims is too remote and
speculative to warrant relief, particularly with regard to County Defendants. The underlying
claims that Plaintiff asserts are without merit, thus failing the second prong of the excusable
neglect analysis related in Craig. The third and final prong is a balancing of the equities. Here,
equity does not favor allowing Plaintiff to re-litigate a series of claims which have already been
ruled to be without merit.
It is unclear in Plaintiffs Unamended Complaint, or in Plaintiff’s Motion to Vacate
specifically what claims he believes remain. The claims against Josey and Miller seem to have
to do with the collection and distribution of the taxes. However, the Court has already
determined that the claims seeking to invalidate the taxes should be dismissed. As a result, the
claims seeking to challenge the collection of the tax fails with the dismissal of the challenge to
the tax itself. The issue as to whether to enjoin the collection or distribution of the taxes is moot.
CONCLUSION
Plaintiff fails to meet his burden of demonstrating that he is entitled to relief under one of
the grounds in Rule 60(b). He has not demonstrated excusable neglect and instead simply stated
that he would have liked to have presented an alternative legal argument earlier in the case. The
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Court has previously ruled on the substantive validity of Plaintiff’s claims, and as a result, the
Motion to Vacate should be denied.
WHEREFORE, County Defendants respond to and ask the Court to deny Plaintiff’s
Motion to Vacate.
Dated: March 27, 2019
LARIMER COUNTY ATTORNEY’S OFFICE
By: s/Frank N. Haug
George H. Hass, Reg. No. 897
Frank N. Haug, Reg. No. 41427
Attorneys for Defendants Miller and Josey
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone: (970) 498-7450
Facsimile: (970) 498-7430
ghass@larimer.org
fhaug@larimer.org
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANTS MILLER AND JOSEY’S RESPONSE TO MOTION PURSUANT TO
C.R.C.P. RULE 60(b) TO VACATE ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS was served on the following using the Colorado Courts E-Filing System and by
placing in the U.S. Mail, postage prepaid, on the 27
th
day of March , 2019:
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Eric R. Burris
Brownstein Hyatt Farber Schreck, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
eburris@bhfs.com
Cole J. Woodward
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
cwoodward@bhfs.com
John W. Mill
Amanda Levin Milgrom
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
jmill@shermanhoward.com
amilgrom@shermanhoward.com
s/Jennifer D. Infeld